Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Whitson v. United States Forest Service

United States District Court, D. Colorado

August 29, 2017

KATHY WHITSON, Plaintiff,
v.
UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, Defendant.

          MEMORANDUM OPINION AND ORDER

          Lewis T. Babcock, Judge

         This case is before me on Defendant United States Forest Service's (the “Forest Service”) Motion for Reconsideration [Doc # 40]. After consideration of the motions, all related pleadings, and the case file, I grant the Forest Service's motion.

         I. Background

         By Order dated May 23, 2017 [Doc # 39] (“the Order”), I ruled on the parties' cross motions for summary judgment in this Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, case. Among other things, I entered summary judgment in favor of Plaintiff on the issue of the applicability of Exemption 7(C) & (E) to her FOIA request and held the issue of the applicability of Exemption 6 in abeyance pending further review by the Forest Service of its reliance on this exemption to withhold certain materials from Plaintiff. I further ordered the Forest Service to disclose all information redacted pursuant to FOIA Exemption 7(E) to Plaintiff and to advise Plaintiff and the Court of the results of its review of its redactions pursuant to FOIA Exemption 6 within thirty (30) days of the date of the Order.

         By the motion, the Forest Service asks me to reconsider the applicability of Exemption 7 to Plaintiff's FOIA request and submits supplemental evidence in support of this request.

         II. Standard of Review

         The parties disagree about the appropriate standard of review for the Forest Service's motion. Indeed, there is no provision in the Federal Rules of Civil Procedure recognizing a motion for reconsideration. Van Skiver v United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Rather, depending on the posture of the case, a motion for reconsideration may be treated as a motion to alter or amend the judgment under Rule 59(e); a motion for relief from judgment under Rule 60(b); or a request for use of the Court's discretion to reopen orders that are short of a final decree. Price v. Philpot, 420 F.3d 1158, 1167 n. 9 (10th Cir. 2005).

         Because the Order held the issue of the applicability of Exemption 6 in abeyance, it is not a final order. See Fed. R. Civ. P. 54(b) (“...order ...that adjudicates fewer than all the claims ... may be revised at any time before the entry of a judgment adjudicating all the claims....). The Order may therefore be revised “as justice requires.” Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011). In determining whether justice requires revision of the Order, I am mindful that the Forest Service submitted extensive briefing on the parties' cross motions for summary judgment for my consideration. See Servants of The Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (motion for reconsideration not appropriate for revisiting issues already addressed or advancing arguments that could have been raised in prior briefing).

         III. Analysis

         FOIA Exemption 7 allows a government agency to withhold “records or information compiled for law enforcement purposes” where the disclosure of such information would result in one of six enumerated harms. 5 U.S.C. § 552(b)(7). The Forest Service bears the burden of demonstrating that this Exemption applies, 5 U.S.C. § 552(a)(4)(B), and I concluded in the Order that it failed to meet this burden on two fronts. First, I concluded that the Forest Service failed to demonstrate that it operates as a mixed-function agency that encompasses both administrative and law enforcement functions. See Church of Scientology of California v. U.S. Dep't of the Army, 611 F.2d 738, 748 (9th Cir. 1979), overruled on other grounds by Animal Legal Defense Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016) (the threshold issue in any Exemption 7 claim is whether the agency involved may properly be classified as an agency that may exercise a law enforcement function). Second, I concluded that the Forest Service failed to demonstrate that the withheld information was compiled for adjudicative or enforcement purposes. See Stern v. F.B.I., 737 F.2d 84, 88 (D.C. Cir. 1984) (threshold test for applicability of Exemption 7 requires government to show that the records at issue were compiled for adjudicative or enforcement purposes). By its motion to reconsider, the Forest Service argues that both of these prerequisites to the applicability of Exemption 7 are satisfied in this case.

         A. The Forest Service's Status as a “Law Enforcement Agency”

         In both her cross motion for summary judgment and her response to the Forest Service's motion for summary judgment, Plaintiff argued that the Forest Service's Human Resources Management (“HRM”) office was not a “law enforcement agency.” See Doc #s 28, p. 28 & 30, p. 30. Plaintiff also asserted that the Forest Service had proffered no evidence to establish that it had express law enforcement authority or that its activities were expressly related to its statutory mandate. See Doc # 30, p.30 (citing Living Rivers, Inc. v. U.S. Bureau of Reclamation, 272 F.Supp.2d 1313, 1318-20 (D. Utah 2003)). In response, the Forest Service did not provide any evidence to show that it is a mixed-function agency with law enforcement authority. Instead, the Forest Service argued that “it is well-established that, regardless of the nature or mission of the agency, personnel investigations of government employees meet Exemption 7's threshold requirement where they focus on specific and potentially unlawful activity by particular employees of a civil or criminal nature.” See Doc # 31, p. 32.

         Now, for the first time, the Forest Service provides evidence of its overall law enforcement function. Without question, the Forest Service had ample opportunity to present this evidence in the briefs it filed in connection with the parties' cross summary judgment motions. Nonetheless, in the interests of justice, I cannot ignore clear evidence that the Forest Service is a mixed-function agency that may invoke FOIA Exemption 7 provided that the remaining prerequisites of this exemption are satisfied. Moreover, it is these other prerequisites that are at the crux of the parties dispute regarding the Forest Service's reliance on Exemption 7.

         B. The Purpose of the Subject ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.